Punishing Offenders

When To Do This

Pressure for prosecution, extradition for foreign prosecution, and sanctions are generally a last resort, when all other forms of inducement for improved conduct have failed to bring results. These measures are the most difficult to enact and usually the most controversial.

How To Do This

Cut off various types of assistance, export licenses, sales, training and cooperation; vote against international loans and financial arrangements; restrict travel, visas and diplomatic operations; ban trade; freeze or confiscate assets; extradite and bring to justice war criminals; impose secondary sanctions against companies or countries that support abuses; allow state and local entities to conduct boycotts and divest holdings; provide criminal penalties and assist in prosecutions.

What You Should Know Before Proceeding

It’s important to know all the accounts from which a country receives funding in order to shut off all the desired spigots. Detailed charts of annual foreign assistance spending, known as the 653(a) Country Allocations reports, are negotiated with and provided to the Appropriations Committees only. The final allocations are reflected in the information published on foreignassistance.gov, but the account-by-account charts are not published separately.

Countries that lose U.S. aid, equipment and advisors may feel less pressure to improve their human rights records. In addition, cutting off aid and diplomatic relationships can reduce U.S. ability to influence a situation and lead to retaliation against pro-democracy groups.

There are already numerous conditions under which U.S. Executive Directors to international financial institutions are required to oppose loans. Many believe these dilute U.S. influence in the banks, since the U.S. is usually isolated in taking these positions and its opposition rarely results in the rejection of a loan.

The administration will use every means at its disposal to avoid complying with congressional aid restrictions.

Sometimes even the threat of sanctions can prompt improvements in the rule of law. Introducing sanctions legislation can be valuable even it if does not move through the legislative process.

Some governments don’t care about losing development and humanitarian aid, even in large quantities. In March 2016, the Millennium Challenge Corporation suspended a nearly $500 million second compact with Tanzania amid concerns about annulled elections in Zanzibar and the failure to ensure freedom of expression and association under a cybercrimes law. Yet this did not prompt corrective measures by the Government of Tanzania.

Under extreme circumstances, the President already has the power – under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), the National Emergencies Act (50 U.S.C. 1601 et seq.), and the and the Trading With the Enemy Act of 1917 (50 U.S.C. 1-44) — to impose economic sanctions to protect U.S. national security.

The Secretary of State may also trigger sanctions by determining that a state has repeatedly provided support for acts of international terrorism. After designating a government as a “state sponsor of terrorism” under Section 6(j) of the Export Administration Act of 1979, Section 40 of the Arms Export Control Act, and/or Section 620A of the Foreign Assistance Act of 1961, the Secretary may terminate foreign assistance, halt exports of defense equipment and dual use items, and impose other restrictions. Currently, Iran, Sudan and Syria have been designated under these authorities.

Good Practices

Sanctions are most effective when they are multilateral, and when those imposing the sanctions have clear moral authority for doing so.

Even targeted sanctions can only be effective if they withhold something that is valued. For instance, denying visas to human rights offenders only works if those individuals have an intention or a habit of traveling to the U.S. Nevertheless, such provisions may be desirable for other reasons.

Make sure you are punishing the right people. All too often, it is the poorest and most vulnerable populations who suffer most from economic sanctions.

Apply the same requirements to all countries in a similar position, so that your provision will not be interpreted as unfairly targeting one country when others are doing the same or worse.

Include incentives for remediation, so that if a country’s performance improves, aid can resume.

If a country is engaging in numerous objectionable behaviors, be sure that some sanctions can be lifted if human rights performance improves, even if there is no progress in other areas.

Propose mandatory, automatic sanctions, but be prepared to negotiate with the administration on providing flexibility to decide which sanctions are imposed when and upon whom.

When cutting off aid, sales or other forms of cooperation, consider carefully which funding streams you want to include or exclude and whether to cover spare parts, training and service for previously-supplied equipment.

Protect humanitarian aid, as well as development assistance that meets basic human needs, from sanctions that are imposed against governments.

Precedents

Restricting Aid and Military Sales

No Assistance After a Military Coup. An annual SFOA provision (most recently Sec. 7008 in PL 114-113) prohibits assistance to the government of any country whose duly elected head of government is deposed by military coup d’état or decree. However, this law has had some unintended consequences. Following a military coup in 2009, Madagascar was cut off from foreign aid and suspended from participation in the African Growth and Opportunity Act. The economy foundered, poverty and unemployment rates grew, and there was a large spike in human trafficking.

A Toothless Standard. One of the oldest and best-known human rights provisions is Section 502B of the Foreign Assistance Act of 1961, which prohibits security assistance to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights. However, the provision relies upon the Secretary of State to determine that a government engages in a “consistent pattern of gross violations,” and it has been rarely invoked.

A Cutoff That Was Circumvented. A series of three legislative restrictions on aid to the Nicaraguan contras, known collectively as the “Boland amendment”, were enacted from 1982-1984. The most restrictive of them, Section 8066 of the FY 1985 Continuing Appropriations (PL 98-473), provided that “No funds available to the Central Intelligence Agency, the Department of Defense or any other agency or entity of the United States involved in intelligence activities may be obligated or expended for the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement or individual.” The Reagan administration circumvented this amendment by secretly selling arms to Iran and using the proceeds to fund the contras.

A Cutoff That Was Thwarted, and Then Backfired. Section 620E(e) of the Foreign Assistance Act of 1961, added in 1985 and known as the “Pressler amendment,” cut off all military aid and the sale or transfer of all military equipment and technology to Pakistan – under any Act — unless the President certified that Pakistan does not possess a nuclear explosive device. It was triggered in 1990 when President George H.W. Bush was unable to make this certification. Yet the State Department – unbeknownst to Sen. Pressler and his allies – ruled that the law did not ban commercial arms sales despite the clear intent of Congress otherwise. In addition, counternarcotics assistance – which may be provided “notwithstanding any other provision of law” – was permitted to continue. However, Pakistan continued its nuclear program and in 1998 detonated six nuclear devices. Sanctions imposed following these tests and a 1999 military coup were quickly waived after 9/11.

Hobbled by Wording. Section 404 of Title IV of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, known as the Child Soldiers Prevention Act of 2008 (PL 110-457), prohibits military aid and arms sales to governments whose armed forces recruit and use child soldiers. The law’s authors tried to learn from the mistakes of the Pressler amendment (see above) by specifically prohibiting licenses for direct commercial sales of military equipment. However, because the prohibition only applies to government-supported forces that both recruit AND use child soldiers in a given year, it leaves out non-state actors being armed by the United States (such as the Syrian opposition) as well as forces that either recruit or use child soldiers, but not both.

Restricting Grants and Contracts

Requirement for Respecting Worker Rights. Section 231A of the Foreign Assistance Act of 1961 (PL 87-195) requires countries receiving insurance, reinsurance, guarantees, or other project financing from the Overseas Private Investment Corporation (OPIC) to take steps to “adopt and implement laws that extend internationally recognized worker rights,” and specifies worker rights language to be inserted into all OPIC contracts.

Restricting Travel, Visas and Diplomatic Relations

Visa Restrictions on Government Officials.Section 5 of the Palestinian Anti-Terrorism Act of 2006 (PL 109-446) provides that visas should not be issued to officials of the Hamas-led Palestinian Authority. Section 5 of the Darfur Peace and Accountability Act of 2006 (PL 109-344) prohibits entry into the U.S. of any individual the President determines to be complicit in, or responsible for, acts of genocide, war crimes, or crimes against humanity in Darfur.

Visa Restrictions Prompt Retaliation. Section 405 of the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 (PL 112-208) prohibits new visas, and revokes current visas, for persons determined to be responsible for the detention, abuse, or death of Sergei Magnitsky, as well as other gross abuses against Russian human rights advocates. Russia responded with the Dima Yakovlev Law, which sanctions a long list of U.S. citizens, forbids Russian non-profit organizations from accepting financing from U.S. sources, and imposes a moratorium on U.S. adoptions of Russian children.

Introduction of Bill Restricting Visas Leads to Prisoner Amnesty. In December 2015, Rep. Chris Smith introduced the Azerbaijan Democracy Act of 2015 (R. 4264, 114th), which would have denied entry into the United States of Azerbaijani government officials and their families. It received extensive press coverage and discussion in Azerbaijan, and three months later – just ahead of President Aliyev’s visit to the United States for a nuclear security summit — more than a dozen political prisoners were pardoned.

Excluding Kleptocrats. An annual SFOA provision on “Anti-Kleptocracy and Human Rights,” most recently Section 7031(c) of PL 114-113, prohibits entry into the U.S. of foreign officials and family members who have been involved in significant corruption. It also requires that the Secretary of State report to Congress on the individuals who are covered by the law, regardless of whether they were denied entry or issued a waiver.

Travel Restrictions. Section 6 of the Palestinian Anti-Terrorism Act of 2006 (PL 109-446) provides that travel inside the U.S. by officials and representatives of the Palestinian Authority and the Palestine Liberation Organization should be restricted to a 25-mile radius of United Nations headquarters.

Diplomatic Sanctions. Section 7 of the Palestinian Anti-Terrorism Act of 2006 (PL 109-446) prohibits the Palestinian Authority from establishing or maintaining an office, headquarters, premises, or other facilities or establishments within the jurisdiction of the United States. Section 9 of the same act prohibits officers and employees of the United States Government from negotiating with members or official representatives of Hamas, Palestinian Islamic Jihad, the Popular Front for the Liberation of Palestine, al-Aqsa Martyrs Brigade, or any other Palestinian terrorist organization.

Prohibition of Imports. Section 6 of the Tom Lantos Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2008 (PL 110-286) prohibited the importation into the U.S. of jadeite and rubies mined or extracted from Burma. The sanctions were terminated by Executive Order on October 7, 2016.

Freezing and Recovering Assets

Blocking assets. Section 5 of the Darfur Peace and Accountability Act of 2006 (PL 109-344) blocks the assets of any individual who the President determines is complicit in, or responsible for, acts of genocide, war crimes, or crimes against humanity in Darfur. Section 5 of the Tom Lantos Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2008 (PL 110-286) blocked the property of, and financial transactions by, members of the ruling military regime in Burma.

Recovering Stolen Assets. Section 315 of the USA PATRIOT Act of 2001 (PL 107-56) makes foreign corruption offenses predicate offenses for federal money laundering prosecutions, subjecting illegally-acquired foreign assets to civil forfeiture under U.S. law. The Department of Justice’s (DOJ) Kleptocracy Asset Recovery Initiative was established in 2010 to focus on recovering and restoring funds to nations victimized by high level officials who have diverted national wealth to their personal use. These efforts have resulted in the seizure of $3 billion in assets, including from corrupt officials in Equatorial Guinea, Nigeria, Ukraine and Uzbekistan.

Applying Comprehensive Sanctions

Comprehensive sanctions on Iran were imposed through the Iran and Libya Sanctions Act of 1996 (PL 104-172), the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (PL 111-195), and the Iran Freedom Support Act (PL 109-293).

Although foreign aid to Cuba has long been prohibited under Section 620(a) of the Foreign Assistance Act of 1961 and many other laws, fears that the administration could unilaterally lift certain financial and trade restrictions led to the imposition of Cuba-specific sanctions. These were enacted through the Cuban Democracy Act of 1992 (Title XVII of PL 102-484) and the Cuban Liberty and Democracy Solidarity (LIBERTAD) Act of 1996, known as the “Helms-Burton Act” (PL 104-114)

South Africa. The first comprehensive sanctions package to be legislatively imposed – in this case, over the President’s veto – was the Comprehensive Anti-Apartheid Act of 1986 (PL 99-440).

Applying Secondary Sanctions

No Aid to Countries That Violate International Sanctions. Section 6(f) of the Darfur Peace and Accountability Act of 2006 (PL 109-344) prohibits non-humanitarian assistance to governments that violate the UN-imposed embargo on military assistance to Sudan.

No Aid to Governments That Support Terrorist States.Sections 620G and 620H of the Foreign Assistance Act of 1961 (PL 87-195) prohibit U.S. assistance to countries that provide assistance or military equipment to state sponsors of terrorism.

Imposition of Sanctions on Those Who Hinder Humanitarian Access. Section 203 of the Caesar Syria Civilian Protection Act of 2016 (R. 5732, 114th) would impose sanctions on persons who hinder humanitarian access by the United Nations and others providing humanitarian relief in Syria.

Applying State and Local Sanctions

No Penalty for Imposing Anti-Apartheid Sanctions. Section 606 of the Comprehensive Anti-Apartheid Act of 1986 (PL 99-440) prohibits the federal government from imposing penalties on state or local governments because of their laws concerning apartheid in South Africa.

Authority for State and Local Divestment. Section 3 of the Sudan Accountability and Divestment Act of 2007 (PL 110-174) provides specific authority for state and local governments to divest from certain businesses that operate in Sudan.

Promoting Effective State Enforcement. Section 225 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (PL 110-457) requires the Attorney General to develop a model anti-trafficking statute for states.

Obtaining Justice

Extraterritorial Jurisdiction. Section 2 of the Torture Victim Protection Act of 1991 (PL 102-256) makes a foreign individual who engages in torture or extrajudicial killing anywhere in the world subject to civil liability in the United States. Sister Dianna Ortiz and nine expatriate citizens of Guatemala successfully brought suit against the former Guatemalan Defense Minister for torture committed by those under his direct command.

Criminal Liability, Inadmissibility and Deportability.The Child Soldiers Accountability Act of 2008 (PL 110-340) makes it a criminal offense to recruit or use child soldiers, and extends jurisdiction to offenders of any nationality who are present in the U.S. The Act also makes recruitment or use of child soldiers a ground of inadmissibility and removability from the U.S.. The first removal order obtained by U.S. Immigration and Customs Enforcement under the Act was issued in 2012 for George Saigbe Boley, who committed serious human rights abuses as the leader of the Liberian Peace Council during the Liberian Civil War.

Deporting Torturers. Subtitle E of Title V of the Intelligence Reform and Terrorism Prevention Act of 2004 (PL 108-458) contains provisions that bar admission of, and authorize deportation of, aliens who have committed acts of torture, extrajudicial killings, or particularly severe violations of religious freedom abroad. It also establishes an office within DOJ to detect, investigate, and take legal action to denaturalize any alien who has committed these acts. This office has managed the prosecutions of individuals involved in the murder of four American churchwomen in El Salvador and other high-profile cases.

Reward Authority for War Criminals. Section 3 of the Department of State Rewards Program Update and Technical Corrections Act of 2012 (PL 112-283) creates enhanced reward authority for information leading to the arrest in any country or conviction by an international criminal tribunal of any individual accused of war crimes, crimes against humanity, or genocide.

Drawdowns for War Crimes Tribunals. Since 1994, annual SFOAs have authorized the drawdown of commodities and services from the inventory and resources of any agency of the U.S. Government to support the work of war crimes tribunals in addressing genocide and other violations of international humanitarian law. Most recently, this authority was contained sec. 7047 of PL 114-113.

Promoting Justice and Reconciliation. Section 7(b) of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009 (PL 111-172) provides authority to promote transitional justice and reconciliation in northern Uganda, including a body to investigate the history of the conflict, inquire into human rights violations committed during the conflict by all sides, promote truth-telling in communities, and encourage the preservation of the memory of events and victims of the conflict through memorials, archives, commemorations, and other forms of preservation.